Asia-Pacific Regional Press Freedom Seminar

Privacy: balancing individual rights and freedom of expression
David Chipp
UK Press Complaints Commission

I have always said that there is only one thing worse than a bad reporter: and that's an unlucky one. The same is probably true of speakers. So it's good that I am in luck with a good story to start my chat on privacy.

As I am sure you all have read, the dysfunctional British Royal Family, with immaculate timing, have given me the perfect intro. Prince William, like any other 19 year old deserves his privacy as he starts his studies at St Andrew's University. The media - and that includes print and broadcasting - agreed that after a day of facilities he should be left alone. It worked - and this was self-regulation proving that it was effective and could work.

BUT. It was always presumed that there would be a maverick who could not be controlled and would break ranks - a local tabloid or a foreign paparazzi. And indeed there was: and who should it turn out to be? A television company owned by his Uncle Edward. This is the same Edward who in the past has complained to the Press Complaints Commission about intrusion when he was courting Sophie Rhys-Jones. He declares that he did not know that a television crew belonging to his company had ignored the agreement and kept on filming (another project they claimed). This from the Joint Managing Director of a small company. If that's true and he did not know, then it shows an incompetence of unbelievable dimensions. But is it the old problem of celebrities wanting to have it both ways: privacy provided it does not interfere with their ability to make money?

The subject on which you have asked me to speak provokes more dispute and emotion than any other relating to self-regulation. Complaints relating to it are not all that frequent; but the majority are very high-profile.

Incidentally, some of us cannot even agree on how to pronounce the word. I think most if not all of you would say privacy. If privacy slips in today pray forgive me. As Dr Johnson said when asked by a lady why in his dictionary he had described 'pastern' as the 'knee of a horse': "ignorance, madam, sheer ignorance",

Politicians, who all at bottom hate the press, are very exercised by privacy and probably a good majority are in favour of legislation. The European Convention on Human Rights is, as far as the United Kingdom is concerned, a move towards such a state of affairs with the danger of often obscurantist judges rather than politicians, who whatever we may think of them are at least elected, making the law. (Parenthetically, I would point out that new anti-terrorism regulations look as if they are going to make the Convention rather less important).

It was on a wave of concerns about privacy, fanned by hostile politicians that the PCC came into being. The old Press Council which had been in existence since the 1950s was slow and bureaucratic, and had lost the confidence of both press and public. By 1990 the press was being told by David Mellor, a leading Conservative politician, "that it was "drinking in the last chance saloon". That same man, David Mellor, paraded his family in his election manifesto. Later the press revealed that he was involved with another woman (or was it two?) Was that an invasion of his privacy? (One of them revealed that he liked to pleasure her while wearing Chelsea Football Club strip, thus for some of us adding bad taste and a lack of sporting judgement to hypocrisy.)

The government of the day set up an enquiry under a prominent lawyer David Calcutt and he, reflecting the views of many politicians but only a few jurists, advocated a tough privacy law. But his committee said, "nowhere have we found a satisfactory definition of privacy".

At this time it was apparent that there were two ways of tackling the question of the protection of individual privacy which I think all would agree is a basic human right. In the first place it could be regulated by law which, apart from anything else, would give an already over-bearing nanny state another opportunity to regulate private lives. But a far more obvious objection is that law is expensive and would thus be used almost exclusively by the rich and powerful who would attempt to cover their tracks - criminal or authoritarian - by writs. One can just imagine the use to which someone like the late crooked British publisher Robert Maxwell or the fantasist perjurer Jeffrey Archer would put it. The lawyers would have a field day. And unscrupulous editors would be able to get away with intrusion, knowing full well that ordinary people would not be able to afford legal redress.

The alternative is self-regulation which in fact works, and the protection of privacy should be at the heart of any Code of Ethics. Of course, critics will say this is self-serving and selective. "How often", they ask "is the private life of an editor or publisher exposed in the press?" Well not often though recently in England two national middle market dailies had a go at one another. In a circulation war, The Mail attacked the new proprietor of the Daily Express, Richard Desmond, as a pornographer - he owned various semi-pornographic magazines. The Express responded by publishing details of Lord Rothermere's mistress. Horrified senior managers realised that apart from anything else this was self-defeating and called a halt.

There is no definition of privacy and in drawing up our Code we have taken the wording of the European Convention and make it clear that "everyone is entitled to respect for his or her private and family life". But I stress that our code suits us; I give it as an example, knowing that it will not be suitable for all countries.

In looking at privacy there are two key problems: first what is an individual's privacy and second, that like any other right in a free society, it needs to be balanced with other rights and in particular the right to freedom of expression and the public's right to know

The British Code gives an indication of what constitutes privacy and it has a major bearing on clauses that relate to the protection of children, those in hospital, the mentally ill, victims of sexual assault and the innocent friends and relatives of those convicted of crimes. The clause on privacy says:

1. Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent.
    
2. The use of long lens photography to take pictures of people in private places without their consent is unacceptable.

Note - Private places are public or private property where there is a reasonable expectation of privacy.

The British Code was written, and is kept constantly under review, by working editors. Some years ago it was feared that it would be imposed by outsiders and interpreted, in the words of Rupert Murdoch, "by retired schoolmasters and failed editors".

Not so now. Editors realise where their responsibilities are, and one of these is to make a judgement on what constitutes an invasion of privacy; and it is for the Commission or Council to scrutinise an editor's judgement if a complaint is made.

There are some things that are obviously and totally wrong. For example, a few years ago a reporter and photographer from the newspaper Sunday Sport disguised themselves as medical staff to gain access to a hospital room where the actor Gordon Kaye, star of the television series Allo, Allo, was recovering from an accident.

But other complaints are not so easy to determine. About 15 per cent of complaints received by the PCC relate in some way to privacy. Many of these call for deep investigation and reflection. One of the main issues relates to pictures, principally of famous people but also of ordinary citizens, taken without permission.

The British Code (and again I stress that it is one fashioned for our needs and culture) contains a simple test. Was the picture taken where he or she had a "reasonable expectation of privacy"? If so, then the editor should not publish it. That reasonable expectation might arise either on private property - such as the inside of someone's home or their back garden, or a private hotel or beach - or on public property. The PCC has always maintained that there are some public places - like a church or the inside of an office - where individuals have a reasonable expectation or privacy, even if they are in public.

Here are some examples of PCC rulings:

• ... complaint, including publication of a picture inside Notre Dame, by Paul McCartney, upheld with the Commission stating categorically that it "expects journalists to respect the sanctity of individuals' acts of worship" and said it believed a cathedral is a clear example of a place "where there is a reasonable expectation of privacy" as defined in the Code of Practice.
   
• Elton John's former wife complained that she had a reasonable expectation of privacy while in a public car park or on the forecourt of a petrol filling station. The Commission disagreed and rejected the complaint. It also said that "a free press will from time to time write about people who have formerly been in the public eye and it is not the Commission's job either to restrict this right or to afford individuals a veto over future publicity"
   
• Anna Ford, a British TV 'personality' complained that her privacy had been invaded by the publication of a picture of her with her current partner taken with a long lens on a public beach. The Commission did not uphold the complaint saying "a publicly accessible beach was a place where the complainant could have had a reasonable expectation of privacy". It further said the pictures were in its opinion "innocuous and the sort taken regularly of well-known people in public place. The pictures neither intruded into any intimacy nor left the complainants open to ridicule ... nor had they illustrated anything about the complainants' relationship that was not already in the public domain".

(Ford was not satisfied and took her case to law, asking for a judicial review and challenging the PCC's ruling, citing the Human Rights Act. The High Court judge did not give an opinion as to whether or not her privacy had been invaded. He simply ruled that the Commission had acted in conformity with its Code of Practice. The code, as I have indicated, prohibits the use of long lens photography to take pictures of people in private places. Ford was on a crowded public beach. She was, thus refused leave to proceed further with her action to seek a judicial review.)

There are dangers here. It is possible that British courts may proceed in time to create new privacy rights at common law against newspaper publishers and other private parties. It remains to be seen whether or not the provisions of the Human Rights Act will in future be used by litigants and interpreted by British judges in ways which will eventually result in the development of what can be described as a back-door law of privacy.

As always, the only winners will be the lawyers with their inflated fees. And it will be the politicians and celebrities who will use it. For can anyone imagine an ordinary citizen thinking that going to law would be a practical financial or attractive option. The complexities are too daunting, the outcome too uncertain and the costs far too high except for the wealthiest (Maxwell and Archer again).

Ford's relationship was in the public domain and there are occasionally complaints about the reporting of material that is already available to the public. For example evidence in court cases or at inquests which some concerned would prefer not to be published

There is also the issue, very prevalent in Britain, of people, mainly celebrities, who sell their stories to newspapers or magazines and then wish to maintain some privacy afterwards. The Editor of the Sunday People, Neil Wallis, put it very well recently. He wrote, after being criticised by a Times columnist for publishing snatched pictures of famous people "Privacy is not a tap that celebrities who crave fame and fortune can turn on or off when it suits them. Editors must judge the respect for each individual's privacy based on that individual's own actions. To do anything else would leave celebrity public relations officers editing newspapers instead of editors. And the real loser from that would be the newspaper readers and the public at large"..

We take the robust view that when individuals sell a story or talk willingly about their private life in public, then their rights to privacy, while not lost, are diminished.

The Commission rejected a complaint by Julia Carling, the then wife of one of Diana's intimates, the England rugby captain in the days when we won matches. She had "clearly placed details of her past and current relationships into the public domain by virtue of articles and interviews designed in past to enhance her image, promote her careers and in pursuance of her contractual obligations to publicise herself."

As Lord Wakeham. Chairman of the PCC, said at the time when Charles and Diana were airing their problems on television "At the end of the day privacy is an inalienable right for us all - for you and your children and for the Royal Family and their children. And which the PCC is there to uphold. But that privacy can be compromised if we voluntarily bring our public lives into the public domain. Those who do so may place themselves beyond the PCC's protection - and must bear the consequences of their actions."

A key issue for press councils is balancing human rights to privacy with the rights of others. The British Code protects just an individual's right to privacy but also the public's right to know. Here are some questions:

• A politician is grievously ill and he or she does not want it widely known. But doesn't the public have a right to know about the health of those governing them? (eg Churchill during his last premiership, Eden at the time of Suez.)
   
• Show business stars divorce. One wants to keep the details quiet, the other wants to sell the story to a newspaper. One has the right to privacy, the other to freedom of expression. Where does the balance lie?
   
• A judge who has made an important ruling on matters concerning family life is discovered to have a less than straight-forward or conventional private life himself. His privacy versus the public'' right to know about his personal behaviour and his public actions?

In some cases the answers to such questions will be easy because the newspaper can demonstrate a sound defence of public interest or that all parties had consented to publication. Now public interest is a difficult one and the PCC devotes an explanatory note in the Code. It is a subject worthy of an entirely separate debate. I will just say that we must always keep in mind the fundamental difference between public interest and what interests the public.

You will note that privacy is an important and tricky subject which leads to much discussion and I will pose three questions:

Are there some people, such as children, who should have extra and total protection?

Are there some people, such as politicians, who should have limited protection?

Are there some people, such as criminals, who should have no protection?

In conclusion, never forget that a democratic press will never be a nice press. This truth is inescapable, though unpleasing to many. Freedom to act responsibly implies freedom to behave in a manner which some might consider irresponsible. Such behaviour is part of the price that society has to pay for freedom of expression.

David Chipp

[ return to top ]

Documents with the icon require the Acrobat Reader, a Free Utility from Adobe. Click here for more information.